State v. Zaglin

103 S.E. 510, 114 S.C. 265, 1920 S.C. LEXIS 103

• Court: Supreme Court of South Carolina
• Decided: June 28, 1920
• Docket: 10467
• Status: Published

Opinions

June 28, 1920. The opinion of the Court was delivered by The appellant was tried for violation of the prohibition law, charged with transportation of liquor under the quart a month law. Defendant was followed, arrested, and his grip searched by two policemen of the city of Greenville at his place of business, Greenville, he being followed by them after he got off of the train to his place of business. The search was an arbitrary one on the part of the policemen, and no warrant was procured or exhibited. Upon the grip being searched three quarts of liquor were found.

The case was tried before Judge Peurifoy, and a jury, and defendant convicted and sentenced. The defendant was sentenced to two years imprisonment, eighteen months of which was suspended on the condition that the defendant did not again violate the prohibition act. Defendant appealed on the following exceptions:

"That his Honor erred in refusing to charge the jury the written request handed to the Court, which request is as follows: `If the defendant was a private carrier for hire, or if, as a favor, he brought in for a friend not more than one quart of liquor for one person's medicinal use during one calendar month, with no intent to violate the law, then he had the right to do so; in other words, a private person or a private carrier for hire has the same right and privileges to bring in and transport liquor as a common carrier for hire' — it being submitted that his Honor erred in refusing said request, in that the Supreme Court of this State has held that a private individual may act as a carrier for hire or as a favor, and that the defendant was only charged with transporting whiskey, and not for delivering whiskey without a permit having been issued, and that his Honor in refusing to charge the request submitted failed to charge the law of South Carolina as laid down by the Supreme Court."

The evidence shows that the defendant is a merchant and a Jewish rabbi in the city of Greenville, and under the uncontradicted evidence he went to New York, and on his return to his home in Greenville he had three quarts of liquor in his possession. He testified that he brought one quart for sacramental and medicinal purposes, and that the other two quarts were brought one each to friends who had requested him to bring liquor for medicinal purposes.

The exception must be sustained under the decisions of this Court in State v. Allston, 107 S.C. 487, 93 S.E. 177, and State v. Gens, 107 S.C. 449, 93 S.E. 139. L.R.A. 1918e, 957. There is no difference in the gallon a month law and one quart a month law, except in the latter law a permit must be obtained in the manner provided for by law before delivery. There was no delivery in this case, and the State failed to show defendant did not get permit.

The action of the officers of the law was outrageous, tyrannical, and oppressive; searching a man's private valise in his place of business, without a warrant. It is commendable to enforce the law, but there are certain well-defined rules of enforcement that officers are bound by, and better that a violator of the law should escape than that the well-defined rules of enforcement should be violated by the officers of the law. The officer should not be allowed to violate for the plain mandates and provisions of the law, provided for the protection of all, in attempting to enforce the law against some one who he suspects is a violator thereof. Liberty is more valuable in some instances than arrest and conviction of a violator.

The action of the officers in the present case was high-handed, oppressive, and without authority, and is to be deplored. No offense was committed in their sight or hearing. Such action of oppression and violating of fundamental principles of law is well calculated to bring about confusion, riot, and bloodshed.

The judgment is reversed.

MR. JUSTICE GAGE. I concur. The testimony of Whitmire that the lady told him to open the grip is hearsay. The entry of the grip was a trespass and unlawful.

MR. CHIEF JUSTICE GARY. I concur under the authorities cited by Mr. Justice Watts, which are conclusive of this case.